G V CHANDUKUTTY Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) SINCE the above appeals arise out of the common impugned order of the Collector of Central Excise, Cochin, dated 23.7.1987, they are taken up together and disposed of by a single order.

(2.) Appellant Chandukutty is a licensed Gold Dealer at Tellicherry. Appellants Dayanandan and Monoharan are brothers and are certified goldsmiths. Appellant Sud hakaran is also a certified goldsmith. Appellant Nakulan is a claimant of a part of the jewellery under seizure in the case.

(3.) SHRI Satyamurthy, the learned counsel for the appellants, submitted that the charges against appellant Chandukutty Under Sections 31, 32(2), 33(3), 36(4), 8(1) and 55(6) of the Act have not been made out by the evidence on record. The learned counsel urged that the inculpatory statement recorded from appellant Chandukutty immediately on seizure is neither voluntary nor true and was brought about under threat and coercion. It was further urged that the statement was subsequently retracted on 27.9.1986 and, therefore, no reliance can be placed without corroboration in material particulars. The learned counsel further urged that the show cause notice in the present case has been issued by the Superintendent, which is not legally valid, and the Collector being the adjudicating authority, the Collector should have issued the show cause notice. A copy of the show cause notice has also not been forwarded to the Collector by the Superintendent. The learned counsel contended that unless the adjudicating authority himself either issued the show cause notice or had all the materials before him prior to the issue of the show cause notice, which is the starting point of an enquiry, it cannot be said that there was proper application of mind on the part of the adjudicating authority before the issuance of a show cause notice. The learned counsel, therefore, urged that the entire show cause notice it self is invalid vitiating the impugned order. The learned counsel further submitted that the plea of the Department that the recovery was from a cavity is also not factually correct, because when admittedly there is an anteroom inside there is no reason as to why appellant Chandukutty should keep the gold and ornaments concealed near the show room. The learned counsel also urged that there is a discrepancy with reference to the time of seizure of the gold and ornaments and, therefore, the seizure is not acceptable.